White v Towers [2013] FJCA 107; ABU57.2011 (3 October 2013)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT
CIVIL JURISDICTION

CIVIL APPEAL ABU 57 of 2011
(High Court Civil Action HBC 11 of 2009)

BETWEEN:

PHILLIP ANDREW JOHN WHITE
and KATHERINE ALEX WHITE
Appellants

AND:

TIM TOWERS
Respondent

Coram : Calanchini P
Basnayake JA
Kotigalage JA

Counsel : Mr G. O' Driscoll for the Appellants
Mr P. Knight for the Respondent

Date of Hearing : 11 September 2013
Date of Judgment : 3 October 2013

JUDGMENT

Calanchini P

[1]. This is an appeal from a judgment of the High Court at Suva delivered on 29 September 2011. The High Court dismissed the Appellants' claim for damages and awarded costs in the sum of $400.00 to the Respondent.

[2]. The Appellants had commenced a High Court action by writ claiming $180,000.00, displacement expenses, damages for distress and inconvenience, interest and costs against the Respondent for the loss of their home which had been destroyed by fire. The Appellants alleged that the fire had been caused by an explosion that resulted from the faulty installation of a gas refrigerator by the Respondent.

[3]. The relevant background facts were either agreed between the parties in the minutes of the pre-trial conference dated 28 July 2010 or appeared not to be in dispute. The Appellants were the registered proprietors of land situated on Retreat Road, Waidroka Bay in the province of Serua. At the relevant time there was erected on the land a timber dwelling house (the premises). The Respondent had been given permission by the Appellants to occupy the premises for a period of about one week in January 2007. The Appellants were at that time and had been for some time travelling overseas. The Respondent had been given the keys to the house by a friend of the Appellants. On 25 January 2007 the Respondent installed in the dwelling house a gas refrigerator which he had purchased new from Fiji Gas. After the Respondent had connected the refrigerator to a gas bottle, he turned the refrigerator on. About one and half hours later, the Respondent left the premises. Later the same day, having been alerted by telephone, the Respondent returned to find the premises on fire. There was no one present in the house at the time the fire started. The house was completely destroyed by the fire. The National Fire Authority conducted an investigation into the cause and origin of the fire. The premises were not insured against the risk of fire in January 2007.

[4]. In their Statement of Claim the Appellants alleged that the Respondent did not possess the necessary expertise and skills required for the installation of a gas refrigerator. It was not disputed that the installation was carried out without the knowledge or permission of the Appellants. The Appellants alleged that the faulty installation by the Respondent resulted in the gas line leaking and that the gas that leaked out was ignited by the pilot light (flame) on the refrigerator which caused both an explosion and then a fire which in turn ultimately destroyed the house. The basis of these allegations or assertions is the report prepared by the Fire Authority which is referred to as "particulars" in the Statement of Claim.

[5]. The Statement of Claim alleged that there was an admission of responsibility by the Respondent made in a telephone conversation to the First Appellant shortly after the fire.

[6]. In his Defence the Respondent admitted that on the day in question he installed in the house a new gas refrigerator that he had purchased from Fiji Gas Co. He claimed that after connecting the refrigerator to the gas bottle, he checked the pipe connecting the refrigerator to the gas bottle and found no leaks. He turned the refrigerator on. The fire started some hours later. The Respondent claims that, if there was an explosion, it occurred after the fire had started.

[7]. During the course of the trial, five witnesses were called on behalf of the Appellants including Mr Saubulinayau (Chief Fire Officer) and the First Appellant. Evidence was given on behalf of the Respondent by the Respondent, his wife, a Mr Tanidrala and a Mr Koroi.

[8]. The learned High Court Judge set out in paragraph 35 of his judgment certain findings of fact which he stated had been established by the evidence. The gas refrigerator was installed by the Respondent on 25 January 2007 at the Appellants house. The Respondent had not obtained any expert assistance when he installed the gas refrigerator and nor did he have any formal training as to how to install a gas refrigerator. The Respondent turned on the gas and ignited the pilot flame. He remained in the house for about one and half hours before he left the house to pick up his workers. The only gas bottle that had been turned on in the house at that time was the gas bottle connected to the fridge. Shortly after the Respondent left the house, the fire started.

[9]. As the learned trial judge observed in paragraph 36 of his judgment, what the Appellants were required to establish on the balance of probabilities was that the Respondent's installation of the gas refrigerator was faulty and that the faulty installation allowed gas to escape which in turned was ignited by the pilot flame resulting in an explosion. There has to be negligence and a causal link between that negligence and the damage suffered. The learned judge stated that there was no evidence adduced by the Appellants to establish that the Respondent had negligently installed the gas refrigerator. The learned Judge stated that the mere proof of installation and the mere proof of fire does not mean that the installation caused the fire.

[10]. The principal witness called by the Appellants was Mr T Saubulinayau who at the time of the trial was Chief Fire Officer with the National Fire Authority. He was called to produce a report dated 27 February 2007 prepared by himself which was tendered as evidence at the trial. For the reasons set out in his judgment the learned trial Judge concluded that the report did not establish negligence on the part of the Respondent nor the cause of the fire. The learned trial Judge referred to the fact that the report contained unsubstantiated conclusions based on a thirty minute external inspection of the burnt house the following day and one statement made to him by another fire officer who had attended the fire scene on the previous day. The fire officer who attended the fire scene on the day of the fire had spoken with the Respondent who told him that he had installed a gas refrigerator earlier in the day. The learned Judge concluded that the report had been prepared without any proper examination of the fire scene. The learned Judge also expressed some concern as to the expertise of the witness to offer an opinion on the cause of the fire. The learned Judge noted that neither the qualifications nor experience of the witness in the field of fire causation was established. The Judge indicated that he could not attach a great deal of weight to either the oral evidence of the witness nor the report. The learned Judge concluded that there was insufficient evidence for him to determine whereabouts in the premises the fire started nor what caused the fire to start, that is, the cause of ignition. As a result the Judge dismissed the Appellants' claim.

[11]. It is against that decision which the Appellants appeal and seek an order from this Court that the whole of the judgment delivered on 29 September 2011 be set aside on the following grounds:

"1. That the learned trial Judge erred in law and or in fact in not granting Judgment in favour of the Appellants when there was compelling evidence to show on a balance of probabilities that the Appellants' loss was due to negligence on the part of the Respondent in that the fire could only have started by faulty installation of a gas refrigerator and its subsequent explosion.

2. That the learned trial Judge erred in law and in fact in holding that the report from the National Fire Authority could not be relied on either to prove the facts of or the circumstances of the fire when the fire report was actually accepted as evidence and had not been discredited by the Respondent.

3. That the learned trial Judge erred in law and in fact in giving no weight to the testimony that the Respondent had told the Appellants that he owed them a house, his inability to recall whether he had stated this or not in no way discredited the Appellants' witness evidence that he had.

4. That the learned trial Judge erred in law and in fact in not considering the totality of the evidence, which was rather sparse from the Defendant, and no reasonable conclusion other than the Defendant caused the fire should have occurred.

5. That that learned trial Judge erred in law and in fact in failing to consider that the expert presented by the Plaintiff was clearly qualified to give his opinion and conclusions regarding the fire, particularly in view of the observation that he had attended about 300 fires since 2007 and was a senior fire officer."

[12]. The first ground of appeal contends that the learned trial Judge was wrong when he dismissed the Appellants' claim. The basis of the contention is that there was compelling evidence to show on a balance of probabilities that the loss was due to the negligence of the Respondent in that the fire could only have started by the faulty installation of a gas refrigerator and its subsequent explosion.

[13]. This ground of appeal has in effect two limbs to it. The first is that there was compelling evidence to show on a balance of probabilities that the Appellants' home was destroyed as a result of the negligence of the Respondent. The second limb is that the fire that destroyed the Appellants' home could only have been started by the faulty installation of a gas refrigerator by the Respondent. The first limb implies that there was sufficient evidence of negligence on the part of the Respondent. The second limb implies that there was no evidence to establish how the fire was caused but that there was no other explanation for the cause of the fire and that it must have been caused by the faulty installation of the gas refrigerator by the Respondent. The second limb brings into consideration the maxim "res ipsa loquitur" (the thing speaks for itself).

[14]. The Appellants in their Statement of Claim pleaded that (1) there was an explosion in their home on 25 January 2007, (2) the explosion caused a fire which destroyed the house, (3) the explosion was caused by the combustion of gas leaking from the gas line and coming into contact with the pilot light of the refrigerator and (4) the gas leak was the result of faulty installation by the Respondent of the gas line to the refrigerator. The Respondent had admitted in his Defence that on 25 January 2007 he had installed in the premises a new gas refrigerator that he had purchased from Fiji Gas Co. It was also not disputed that the Respondent had on the same day connected the refrigerator to a gas bottle and turned it on. The fact that a fire occurred at the home later on the same day was not disputed, nor that the fire destroyed the house. To prove the remaining allegations in dispute the Appellants relied on the Fire Investigation Report prepared by the National Fire Authority.

[15]. Based on the pleadings the Appellants relied on the report to establish (1) that it was an explosion that caused the fire and that the explosion was caused by leaking gas from the gas line coming into contact with the refrigerator pilot light and (2) that the leaking gas from the gas line was the result of the faulty installation by the Respondent of the gas refrigerator which can only mean the faulty connection of the gas line to the refrigerator or to the gas bottle. If there was a leak in the gas line itself then liability may well be shared with the supplier and or the manufacturer. This matter was not raised in the pleadings.

[16]. The fire investigation report was one of many documents in the agreed bundle of documents that the parties had produced prior to the hearing of the action. This Court was informed that the report was formally tendered and admitted into evidence. It appeared not to be seriously disputed that the date of the report was 27 February 2007 although there were later dates appearing on the first two pages of the report. The explanation for the later dates was that those pages had been misplaced and subsequently reproduced on the later dates as shown.

[17]. The report was compiled by Mr Saubulinayau who was described in the Record as Chief Fire Officer when he gave his evidence at the trial. In his evidence Mr Saubulinayau admitted that he attended the fire scene the day after the fire (that is, 26 January 2007) at about 12 noon. He admitted that he was present for about 30 minutes. He stated that he walked around the exterior of the burnt house. The smouldering remains were still too hot for him to conduct any internal inspection. It would appear that during the course of his external inspection of the burnt house, the witness noticed pieces of glass about ten metres away from the building which he considered indicated an explosion. In addition, during the inspection, the witness was informed by his assistant, a Mr Timoci Nakaruru, that he (Mr Nakaruru) had been informed that the Respondent had installed a gas refrigerator the previous day. The witness admitted that he drew conclusions from his observations of broken glass on the ground and from second hand information passed to him by his assistant. The witness stated that the broken glass did not have any sign of smoke or fire on its edges, indicating that the explosion occurred before the fire. He admitted that he had not spoken to the Respondent nor any other person who was present at the house after the fire had started.

[18]. The report itself stated that as a result of the external inspection, it appeared that an explosion had occurred. Although the internal investigation comments set out what the witness described as the source of the ignition, that conclusion is based solely on what the Respondent had told a fire officer on the day of the fire. There was no evidence found at the scene of the fire or adduced at the trial to support the conclusion that the source of ignition was the fridge pilot light which caught the escaped gas and started the fire. As well, there is no reference to any explosion on this page of the report. The report goes on to state that the point of origin was the gas fridge and that the suspected cause was escaped gas from its piping connection which caught fire from the pilot light within the fridge. The report stated that the ignition source was the pilot light. At no time was an internal inspection or examination of what remained of the burnt house and its contents undertaken to determine the location where the fire started nor how it started, i.e. the cause of ignition. The report did not establish on the balance of probabilities that the fire was caused by the faulty installation of the gas refrigerator by the Respondent. There was no reference in the report to the evidence given at the trial by Mr Saubulinayau as to the presence of broken pieces of glass 10 metres away from the burnt house.

[19]. As a result the position at the conclusion of the Appellants' evidence was that the Appellants had proved the happening of the accident, that is the fire that destroyed their house but they were not able to establish by evidence any particular negligent act or omission on the part of the Respondent. The question for this Court is whether the maxim "res ipsa loquitur" can come to the aid of the Appellants? Can it be said that the mere happening of the fire speaks for itself since its occurrence can be said to be more consistent with negligence on the part of the Respondent than with other causes. In other words, was the fire more consistent with the faulty installation of the gas refrigerator by the Respondent than with any other cause? If the Court answers yes to that question then it may find negligence on the part of the Respondent unless the evidence reveals a reasonable explanation to show how the fire may have started without any negligence on the part of the Respondent.

[20]. Before considering this aspect of the claim, it is necessary for me to indicate that during the course of the appeal hearing reference was made by me that the maxim had not been pleaded by the Appellants in their Statement of Claim. To the extent that my comments indicated that it was necessary for a plaintiff to plead the maxim, there is abundant authority to the effect that the maxim need not be pleaded before a claimant may rely on it. In Bennett –v- Chemical Construction (G.B) Ltd [1971 1 WLR 1571 Davis L.J. observed at page 1575:

"In my view it is not necessary for that doctrine (res ipsa loquitur) to be pleaded. If the accident is proved to have happened in such a way that prima facie it could not have happened without negligence on the part of the defendants, then it is for the defendants to explain and show how the accident could have happened without negligence. The defendants made no attempt to do that in this case."

[21]. The same opinion was expressed by Byrne P in Shaheed Imroz Ali –v- Muktar Ali and Another (unreported ABU 29 of 2006; 3 December 2009). In the same judgment Byrne P observed at paragraph 3 that:

"Res ipsa loquitur is no more than a convenient label to describe situations where notwithstanding the Plaintiff's inability to establish the exact cause of an accident, the fact of the accident by itself is sufficient, in the absence of an explanation, to justify the conclusion that most probably the defendant was negligent and that his negligence caused the injury."

[22]. In this case there is the undisputed evidence of the fire which can reasonably be described as an unexplained occurrence which would not have happened in the ordinary course of events without negligence on the part of some person. The circumstances of this unexplained occurrence (the fire) point to the negligence in question being that of the Respondent rather than that of any other cause. The gas refrigerator had been installed by the Respondent. Its installation had been at all times under the control of the Respondent. The gas refrigerator after installation had been under the sole control of the Respondent until he left the premises one and a half hours after installation. The fire apparently started a short time after the Respondent left the house. Under those circumstances a presumption of negligence arises which remains until it is displaced or at least neutralised by the Respondent. At the very least, the effect of the phrase is that it required the Respondent to adduce credible evidence which explained how the fire started without negligence on his part. (See Mummery –v- Irvings Pty Ltd [1956] HCA 45; (1956) 96 CLR 99 at page 120). There is authority in England for the view that the effect of the rule is to shift the burden of proof to the Respondent. (See Moore –v- R Fox & Sons [1956] 1 QB 595). For the purposes of the present appeal it is sufficient to state, without offering an opinion as to the position in Fiji, that at the very least the Respondent was required to give a reasonable explanation which was equally consistent with the accident happening without negligence on his part as with it. There is no doubt that it is open to this Court to set aside the decision of the learned trial Judge sitting alone if such a course is warranted by the evidence or lack thereof adduced by the Respondent.

[23]. In my judgment the Appellants' Statement of Claim was sufficient to indicate to the Respondent the basis of their claim against him. The Respondent was aware that it would be necessary to adduce rebuttal evidence. In fact, the Respondent called witnesses and gave evidence himself with a view to establishing that the installation of the gas refrigerator was not faulty, did not cause the fire and that the fire was caused by something other than any negligence on the part of the Respondent.

[24]. The Respondent in his evidence (P.73 of the Record) described in some detail how he installed the gas refrigerator which he had purchased new from Fiji Gas about one week earlier. Installation of the gas refrigerator involved connecting the hose to the refrigerator and to the gas bottle. After connecting the hose to both the bottle and the refrigerator the gas was turned on at the gas bottle. The Respondent testified that he tested for leaks by using water and detergent with a sponge. There were no leaks. He stated that he then ignited the pilot light and the refrigerator started to work normally. He stated that the hose was about 4 metres long. Initially the gas bottle was outside the house. About 1½ hours after he had ignited the pilot light, the Respondent had to leave the house. He placed the gas bottle inside the house. He turned on the water pump in the house and washed his hands. He left the house to pick up his workers and the fridge was working properly at that time. He turned on one circuit breaker switch to start the water pump. Between the time of installing the refrigerator and leaving the house the Respondent was attempting to assemble a bed. He had previously installed a gas refrigerator in a container in which he and his wife stayed. He had previously installed gas refrigerators in camper vans in Australia although he admitted that he did not have any qualification to do so.

[25]. The additional evidence upon which the Respondent relied to establish that it was not the installation of the gas refrigerator that caused the fire was given by the Respondent's wife and a Mr Tanidrala. The Respondent's wife stated that she was driving towards the house when she noticed smoke coming from the vicinity of the house. It would appear that by this time it was about 5.00p.m. When she arrived at the house she observed flames coming from the back of the house in the vicinity of the kitchen. The sketch plan showed that the store room was adjacent to the kitchen. She also stated that the glass was still intact and had not been broken. As the fire progressed the wooden floor collapsed and the glass fell to the ground and broke. The house was built on poles and elevated some height above ground. She gave no evidence of hearing any explosion.

[26]. Mr Tanidrala stated that he arrived at the burning house with the Respondent. He gave evidence that when he looked inside the house he noticed that the gas refrigerator was not on fire. He stated that the fire was on the other side of the room. In cross-examination the witness stated that he saw flames in the storeroom. He was able to observe the gas refrigerator, the hose and the gas bottle. They were not on fire at that time. He also stated that when he arrived all the glass was still in place. He stated that the glass broke when it fell about ten minutes after he arrived. He gave no evidence of having heard an explosion.

[27]. The evidence called by the Respondent did not provide any alternative reasonable explanation as to the possible cause of the fire or cause of ignition. The evidence was essentially concerned with observations as to the location of flames in the house. It is clear that by the time the Respondent and his witnesses had arrived the fire was well established. Their observations were made under circumstances of stress and danger. The opportunity to form any reliable conclusions concerning the location of flames was hindered by smoke and the dynamic nature of a house fire. Furthermore their evidence at trial was given some four years after the event and no doubt was based as much on reconstruction as memory. It must also be recalled that evidence based on reconstruction runs the risk of becoming self-serving the longer the amount of time has passed between the date of the event and the date of testimony.

[28]. Although there was evidence of certain materials stored in a store room in the house, there was no evidence that could reasonably lead to the conclusion that the fire started or was ignited in the store-room. The Respondent admitted activating the water pump by switching a circuit breaker in the store-room a short time before leaving the house. There was no evidence at all to suggest that this act was the cause of ignition. There was no fire when the Respondent left the course shortly after he switched on the water pump and after washing his hands.

[29]. Consequently the evidence adduced by the Respondent at the trial did not point to a cause of ignition that displaced the conclusion that the fire was caused or ignited as a result of the faulty installation of the gas refrigerator by the Respondent and hence did not neutralise the presumption of negligence on the part of the Respondent. In my judgment the maxim applies to the circumstances of the present case. The Respondent's evidence did not establish an alternative explanation inconsistent with negligence of the part of the Respondent. I would allow the appeal on ground one of the grounds of appeal.

[30]. Having decided the appeal on ground one relying on the maxim and the inadequacy of the evidence called by the Respondent to displace the presumption, it is not necessary to consider the other grounds of appeal that relate to the quality of the evidence called by the Appellants to establish negligence on the part of the Respondent. I have earlier indicated that the evidence did not establish any particular negligent act or omission on the part of the Respondent that could be said to be the specific cause of the fire or cause of ignition and that his liability arises on the basis that the evidence activated the maxim "res ipsa loquitur."

[31]. Although unrelated to the phrase "res ipsa loquitur", there was the issue of the telephone conversation between the First Appellant and the Respondent. It seems not to be seriously disputed that there was such a telephone conversation. The Respondent telephoned the First Appellant shortly after the fire. The First Appellant gave evidence as to the contents of that conversation. The First Appellant was quite certain that the gist of the conversation was an acknowledgment by the Respondent that he was responsible for the fire. Under cross-examination the Respondent's answers to a series of questions put to him by Counsel consisted of an inability to recall whether he had made such admissions. His answers on paper were certainly not convincing.

[32]. Having found in favour of the Appellants on the question of liability, it is necessary now to consider how this Court will approach the issue of damages. Ordinarily it would be proper for this Court to proceed to consider the question of damages and to make an appropriate order in favour of the Appellants. There are however in this appeal some obstacles to this approach being adopted. First, neither party has addressed the question of damages in their written submissions in this appeal. Secondly, the written submissions made by the parties to the learned trial Judge after the evidence had been completed, have not been included in the Appeal Record. They should have been (see Rule 18 Court of Appeal Rules). Thirdly, neither Counsel addressed the Court on the legal issues that arise on an assessment of damages for loss occasioned by fire. Counsel for the Respondent mentioned in passing that there were two measures of damages depending upon whether a replacement house had been erected on the premises by the Appellants. Finally, there are some evidentiary matters upon which this Court would either need the agreement of Counsel or hear further evidence. These include the current ownership of the land, whether a new house has been erected by the Appellants on the land and a valuation of the destroyed house before the fire.

[33]. It is for these reasons that I have reluctantly concluded that the action should be remitted to the High Court for assessment of damages. I would allow the appeal, set aside the judgment of the Court below, enter judgment for the Appellants on liability and order costs of the appeal in the sum of $4000.00 to be paid to the Appellants by the Respondent.

Basnayake JA
[34]. I agree with the reasons and conclusions of the Honourable President.

Kotigalage JA
[35]. I agree with the orders proposed by Calanchini P.

Orders:

1. Appeal allowed.

2. Judgment of the Court below set aside.

3. Judgment for the Appellants.

4. Action remitted to the High Court for assessment of damages.

5. Respondent to pay the costs of the appeal fixed summarily in the sum of $4000.00 to the Appellants.

.....................................................
Hon. Mr Justice Calanchini
President

.....................................................
Hon. Mr Justice Basnayake
Justice of Appeal

.....................................................
Hon. Mr Justice Kotigalage
Justice of Appeal